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Pair involved in attack on teen escape jail sentence

Two Greater Sudbury men won't go to jail for a vicious assault in the downtown that left a young city man unconscious with cuts and broken facial bones.

"This is not reasonable, this is not mature," Ontario Court Justice William Fitzgerald told Andrew MacLeod, 21, and Jeffrey Marks, 20, as he held up a photograph of the badly swollen teen they beat up on June 16.

"This is extremely violent behaviour by persons who over-consumed and let alcohol take control."

Fitzgerald had been asked to consider a joint submission by the Crown and defence lawyer Glenn Sandberg that MacLeod receive a suspended sentence with probation. But the Crown could not agree with a conditional discharge and probation being sought by Marks's lawyer, John Recoskie.

In the end, Fitzgerald was swayed by fact the two stayed out of trouble and had done well in school.

"I have often said the day of sentencing, it's not so much the offender I am concerned with, but the rest of us," said Fitzgerald, who agreed with the suspended sentence and conditional discharge requests. "Certainly, if there was any indication either of you are unwilling to live peacefully in the community, (jail) would be my first indication.

"But, the indication is here that you are and you want to live peacefully in the community. So, I will say of those who want a total withdrawal of freedom, that is not the answer. Respect is the answer. Respect in the community in a positive way and live peacefully and demonstrate to the community that they are remorseful."

Fitzgerald put MacLeod on two years of probation and Marks on 18 months. The two probation orders include no contact with the victim and witnesses in the incident, no contact with each other, and no alcohol consumption. He also ordered both to provide genetic samples to the National DNA databank

"I'd just like to say I'm very sorry to the people involved in the case," MacLeod told the court. "I have matured since the incident and you will not see me here again."

"I'd just like to apologize to the people, the victim," Marks said. "You won't see me here again."

The victim, who was present in court with several family members and friends, did not address the court, but did provide a victim impact statement. Walker told the court the young man was a top motocross competitor and had to miss a summer of competition due to his injuries.

The case had been scheduled to go to trial Monday. Walker told the court the Crown would have had a difficult trial because witness accounts of what happened varied and the victim has no memory of the incident.

The court heard Marks got into an argument with the male victim in the west parking lot of the Rainbow Centre in the early morning hours of June 16 and struck him. MacLeod then got involved, punching and kicking the young man in the face.

The teen was taken unconscious to hospital.

Marks was arrested a short time later in the downtown covered in his own blood. MacLeod was arrested the next day.

While Marks had no prior criminal record, MacLeod was fined a total of $1,250 in 2009 for refusing to provide a breath sample and marijuana possession.

On May 31 -- just 16 days before the assault in the parking lot -- MacLeod was found not guilty of an assault charge arising from an attack that occurred near SRO on Durham Street Oct. 8, 2011.

Sandberg told the court the June 16, 2012, assault was "grossly out of character" for MacLeod, who has completed a two-year instrumentation engineer program and is now taking a third year.

"He has learned considerably from this experience," the lawyer said. "It has scared him witless."

Sandberg also read out a short letter of apology from MacLeod to the court.

"All people should have the freedom to walk around without fear," Sandberg said, reading from the letter. "This is a situation that should have been dealt with in a more respectful manner."

Recoskie, meanwhile, said it was almost a matter of luck the injuries the teen received were not more severe. He said the assault was out of character for Marks, who has a mining engineering technician diploma and is now working in the mortgage field.

"He is scared," said Recoskie. "He has taken very seriously what took place that night ... He has eschewed his previous social life."

Walker, in his submission, said the case was a good example of how excessive drinking can lead to violence. He said it was MacLeod who had the greater role in the assault and the injuries the young man received could have been worse if not for the intervention of others in the area.